Same-Sex Marriage: 'No Absolute Biological Concept Of Man, Woman' | All You Need To Know About The Landmark Hearing

The Supreme Court is set to deliver its judgment on a batch of petitions seeking legal recognition of same-sex marriages on Tuesday. A five-judge bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had started hearing the petitions on April 18, 2023. The bench reserved its judgment on May 11, 2023, setting the stage for a decision that holds profound implications for the queer community and their strife for equal rights in the country. 

Around twenty pleas were filed by people including same-sex couples, transgenders and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955 and the Foreign Marriage Act 1969. The petitions argue that the legislations in their current form do not recognise non-heterosexual marriages indicating a bias against the LGBTQIA+ group. 

Here's A Look At The Major Developments That Have Taken Place During The Historic Legal Battle

-The Centre challenged the maintainability of the petitions and urged the top court to dismiss the batch of petitions. In its argument it presented that marriage is a social-legal institution and can only be created, recognised and regulated by the competent legislative body under Article 246 of the Indian Constitution. Its Central Government contended that the courts lacked the authority to create or recognise marriages through judicial interpretation or legislative adjustments. Significantly questioning the validity of the objection, CJI DY Chandrachud said: "Once we have a picture on what is the canvas they're arguing on, we may tell them what is the canvas we want them to argue on."

-However, the court has cleared that for now it would be limiting itself to the ambit of the Special Marriages Act and would steer clear of personal laws and the challenge pertaining to the Hindu Marriage Act was not taken up. Justice Kaul remarked: " Sometimes incremental changes in issues of societal ramifications are better. There is time for everything."

-The Centre in its second affidavit contended that marriage was "an exclusively heterogeneous institution" and argued that the petition of queer marriage only represented the "urban elitist views for the purpose of social acceptance". The SC, disapproving the Centre's stance, observed that it could not dub homosexuality and the idea of marriage equality as "urban elitist". 

-In context of the Special Marriage Act using the words : "Man" and "Woman",, the Solicitor General of India Tushar Mehta argued that biological gender defined a person's gender. In a landmark statement, CJI DY Chandrachud disagreed with the remark and said : "There is no absolute concept of a man or an absolute concept of a woman at all. It's not the question of what your genitals are. It's far more complex, that's the point." 

-During the hearings CJI DY Chandrachud also presented that Indian culture has a long history of inclusivity and that the British Victorian morality had influenced the exclusion of queer individuals.